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Revised "named persons" bill still needs improvement, Faculty believes

17 August 2017

Ministers' attempts to cure the flaws in the “named person” legislation still require modification to meet the criticisms made by the UK Supreme Court, according to the Faculty of Advocates.

Faculty has published its submission on the Children and Young People (Information Sharing) (Scotland) Bill, drafted in response to the Supreme Court’s ruling on the Children and Young People (Scotland) Act 2014. The bill is being considfered at stage 1 by the Scottish Parliament’s Education & Skills Committee, which called for views on the measure.

In its evidence Faculty points out that two principal issues were identified by the Supreme Court – a serious lack of clarity for those implementing the legislation and the lack of safeguards for those affected.

“Neither of these issues is easy to resolve, and some of the criticisms of the Supreme Court will continue to apply if the bill as drafted is passed and the accompanying code of practice is approved”, it comments.

Faculty disapproves of the fact that issues relating to informing a child or young person, or parent, that information is to be shared and obtaining consent, are discussed in the code of practice, but not mentioned in the bill.

“In our view, these issues are sufficiently fundamental to be referred to within the legislation itself, rather than simply being dealt with in the code of practice,” it submits.

"It should be remembered that a code of practice is not a substitute for legislation. A code is not debated and passed by the Parliament. Where there is any conflict between the statute and the code of practice, the statute will prevail."

Faculty further comments that the information sharing provisions, which will require to be operated by teachers, health visitors, social workers and other non-lawyers, need to be clear and accessible.

“The draft code itself illustrates the complexity of the issues to be faced, and dealt with by busy professionals focused on other aspects of provision for children. A professional considering information sharing is required to carry out a proportionality exercise…

“We remain concerned that this is an exceptionally difficult requirement to impose on professionals in respect of every child in Scotland. Its imposition risks making their job considerably more difficult and undermining the trust of families and the willingness to share information with the professional concerned.

“In our view, the code of practice itself would benefit from being phrased in more accessible language… Given the complex exercise being expected of those professionals, they should also, in our view, have access to an advice service or helpline to provide assistance when they are uncertain how to deal with information sharing.”

Click here to view the full response. 

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